(1) The opponent Mohamadkhan son of Hasankhan, aged about 25, by occupation a bidimanufacturer, of Nagpur, is being prosecuted before the First Additional Sessions Judge, Nagpur, for an offence under Section 366 of the Indian Penal Code in Sessions Trial No. 34 of 1959. The prosecution alleged that he was responsible for kidnapping one Mst. Lila wife of Karudas who a worker in the bidi factory owned by him. Mst Lila had been working there during the year 1958 and on or about 16-7-1958 she had a quarrel wiith her husband karudas. As a result of the quarrel she left her husbands place and was going to her grand mothers place at about 8-30 or 9.pm At about this time the opponent is said to have met her on the road and persuaded her to accompany him. She was taken to the house of Babibkhan (P.W.5) where she was kept for two days. With the merits of these allegations I am not here concerned.
(2) After part of the prosecution evidence had been tendered before the sessions court, the sessions trial was by order dated 22-7-1959 of the sessions Judge, Nagpur, transferred from the court of Mr. B.V. Patwardhan Extra Additional Sessions Judge, Nagpur, to the court of Mr. T.L. Junankar, First Additional Sessions Judge. The order impugned in this revision application was passed on the 22nd July 1959.
(3) A day before the case was transferred as stated above the prosceution filed an application before Mr. Patwardhan that three witnesses whom the prosecution had not examined during investigation should be allowed to be summoned and examined in the interests of justice. The three witnesses were Dr. Kanikadaley, the Radiologist, Mayo Hospital, Nagpur, Karudas, the husband of the complainant Mst. Lila and Rama, her father. In their application dated 20-07-1959 the prosecution indicated that the evidence of the husband was necessary on the question of the proof of marriage and lawful guardianship of Mst. Lila on 16-7-1958 and the fathers evidence was necessary in order to prove her age and the report relative to the birth of Mst. Lila made to the police on 24.5.1941 The Exta Additional Sessions Judge Mr. Patwardhan rejected this application so far as the last mentioned two witnesses were concerned. Thereafter as I have said above, the trial was transferred to the court of Mr. T. L. Juanankar, the First Additional Sessions Judge Nagpur.
(4) On 22-7-1959 the prosecution put in a further application before Mr. Junankar. By this application they prayed that they would produce Karudas and Rama before the court and that they should be permitted to examine those witnesses for the prosecution. The application also stated that when the counsel for the prosecution opened the case, he had specifically referred to the evidence of Karudas and Rama and had stated that they would be examined as additional witness though they were not examined before or mentioned in the challan. The additional Sessions Judge rejected this application for the following reason:
A similar application was already made to Shi Patwardhan, Extra Additional Sessions Judge, Nagpur, and was rejected by him, on 21-7-1959. Parties heard. I do not think that I should review that order dated 20-7-1959 nor do I think that this court has power to review the same. The application is rejected.
(5) Thereafter on 25-7-1959 the prosecution made a further attempt to get in the evidence of those two witnesses. They made another application reiterating that in the opening address under Section 286 of the Code of Criminal Procedure, the Public Prosecutor had stated that additional evidence will be adduced by examining Karudas, the husband of the prosecutrix, and Rama, the father of the Prosecutirix, for proving the fact of lawful guardianship at the time of the commission of the offence and the age of the prosecutrix on the day of the incident with reference to the birth date of Mst. Lila as shown in the register of birthes. The prosecution also explained that they were not seeking the help of the court for issuing process to these witnesses to secure their attendance for giving evidence before the court but that the prosecution would be producing those witnesses and would keep them in attendance without the aid of the court and they claimed that under these circumstances they were entitled to examine these circumstances they were entitled to examine these witnesses. This application also was rejected by the Additional Session Judge on the same day for the following reasons:
The defence counsel opposes the application. It will be seen that this request was made to my predecessor Shri Patwardhan and was rejected. Today all the witnesses for the prosecution have been examined and the case has almost come to an end. To permit the prosecution to examine she siad witnesses now would cause serious prejudice to the accused. The statements of the said witnesses were never recorded by the police and the accused cannot be said to have any effective material to cross examine the witnesses with any success. To permit the prosecution to examine the witnesses at this stage will be have in fact the effect of filling up the gaps in the prosecution case. Further I am being asked to review my own order.
(6) Now, it seems to me that the first reason given by the First Additional sessions Judge that his predecessor had rejected made to the predecssor of the First Additional Sessions Judge, namely, Shri Patwardhan, was not that the prosecution should be allowed to examine the witnesses should be allowed to be summoned, a request which, as I shall presently show, could legitimately have been rejected by that Judfge. The request made to the First Additional Sessions Judge, however, was merely that the witnesses whom the prosecution had themselves produced and who were actually present in court on that day should be examined. The first reason given therefore for rejecting that application does not appear to me to be correct.
(7) I also do not see much point in the second reason given in the order that all the witnessess for the prosecution had been examined that day and that the case had almost come to an end, The fact remains that on the day on which the request to examine the witnesses was rejected, the prosecution case had not been closed. That it had almost come to an end is hardly a relevant consideratiion. The third reason advanced was that the examination of these prosecution witnesses would seriously prejudice the accused because the statements of the witnesses were never recorded by the police and the accused would not have any effective material to cross examine the witnesses with any success, and moreover, it would help the prosecution to fill up the gaps in the case. these were also the main grounds upon which the application for revision before me was contested on behalf of the opponent by Mr. Ahmed appearing on his behalf.
(8) In cases of trial by a court of Session, the procedure in this behalf is prescribed by Section 286 (1) of the Code of Criminal Procedure. Under that section,, when the Judge is ready to hear the case the prosecutor shall open his case by reading from the Indian Penal Code the description of the offence charged and stating shortly by what evidence he expects to prove the guilt of the accused. Then sub sec (2) prescribes that the prosecutor shall then examine his witnesses. It is to be noted that in the instant case there is an averment that the prosecutor had in opening his case mentioned the names of these two witnesses as witnesses whom the prosecution will examine in addition to the witnesses mentioned before the committing Magistrate. This statement in the applications was never controverted on behalf of the accused.
(9) Now it seems to me that ordinarily in a criminal trial it is the right of thhe prosecution to examine as many witnesses as they choose unless their right is curtailed by some provision of law. there is nothing in the code of Criminal Procedure to limit the right of the prosecution only to examining witnesses examined before the committing Magistrate, and in so far as S. 286 gives the prosecutor an option to examine his witnesses after opening his case, it seems to me that the prosecution may examine in the Sessions court witnesses other than those mentioned before the Committing Magistrate.
(10) No doubt, at this stage, it would not be open to the prosecution to have fresh witnesses summoned for the purpose of their evidence being taken and considered in the trial. To that extent the reject by Mr. Patwardhan of their application to summon new witnesses was in my opinion justified.
(11) But the position here is that the prosecution realized their error and abiding by the order passed by Mr. Patwardhan, produced the two witnesses whom they wished to examine on 25-7-1959. This was done while the prosecution case was still being heard and had not been closed. S. 286 sub-s (2) was therefore clearly attracted. It says that the prosecutor shall then examine his witnesses and that does not limit the right of the prosecutor to examine such witnesses as have been summoned only. If the prosecution have additional witnesses ready and avilable to them for giving evidence and keep them in attendance, their evidence in my opinion, can be recorded and there is no legal impediment to that course.
(12) A consideration of the provisions of S. 540 of the Code of Criminal Procedure also leads to the same conclusion. That section however gives the court discretion to examine at any stage of attendance though not summoned as a witness, that however is the power vested in the court itself. I refer to that power because it does not seem to me that the additional Sessions Judge in rejecting the application dated 25-7-1959 in the instant case adverted to that power which he undoubtedly bad.
(13) Then I turn to the question of prejudice which is the main plank upon which the arguments in revision were based. I am in the first instance stant case. At the stage at which the reuqest to examine the two witnesses was made the prosecution case was still being unfolded and their summoned witnesses were being examined, Their case had not been closed. The so-called prejudice in the instant case appears to me no more and no less than the sort of prejudice - if at all it may be called prejudice - whhich is always occasioned when a prosecution witnesses are examined against the accused. Moreover, no grievance at all was made before the Additional sessions Judge that the examination of these witnesses would prejudice the accused or that he was not prepared to cross examine them.
Then it was urged that if the witnesses had been allowed to be examined the accused would have been taken by surprise. If such an objection had been made before the trial court or is even now made after the case goes back. I have no doubt that the First Additional Sessions Judge will in his discretion give sufficient time to the defence to prepare itself for the cross examination. If need be the trial court may ask the prosecution to state in writing the gist of what these witnesses are going to depose. That such a course is permissible and proper is established by the Full Bench case of Mt. Niamat v. Emperor 37 Cri LJ 742 : AIR 1936 Lah 533. Thus the objection would be obviated that these witnesses were not examined by the police during the investigation, and surprise would be caused to the accused if they depose for the first time before the First Additional Sessions Judge. If these safeguards are observed, in my opinion there will be no prejudice caused to the accused by the mere fact of these three witnesses being examine as additiona witnesses over and above those who have been summoned. I am fortified in the view that I have taken by the observations of their Lordships of the Supreme court in Bhagwan Singh v. State of Punjab : 1952CriLJ1131 , and by an earlier case decided by the Madras High Court in In re Narayana Reddi, : AIR1941Mad324 .
(14) Mr. Ahmed relied on the decision of the Madras High court in In re K. V. R. S. Mani, : AIR1951Mad707 . That was a case where a request to examine an additional witness was made after the examination of all the prosecution witnesses and after the prosecution had closed their case. Obviously, different considerations would prevail under those circumstances.
(15) Reference was then made to the provisions of Section 207-A sub sec (3) of the code of Criminal Procedure which was recently added by the amending Act. No. 26 of 1955. It was contended that the view I have taken above would take away the right conferred upon the accused by the said sub section, to be furnished with copies of all the documents mentioned in Section 173 of the Code of Criminal Procedure, particularly the case diary statements recorded by the Police. In my opinion, it is not necessary in the present case to consider to what extent these new provisions of law impinge upon the right of the prosecution to examine all such witnesses as they can keep in attendance and are willing to give evidence, because in the present case, the police have admittedly not made any record of their statements during investigation. The new right given to an accused can only arise where such statements are recorded and not otherwise.
(16) Mr. Ahmed then urged that by examinign the two witnesses, the prosecution were merely trying to fillup gaps in the prosecution case in so far as they were trying to prove the age of the girl and thefacts relative to her lawful guardianship. He urged that the sub Inspector who had investigated the case had been examined and in cross examination he had admitted that the witnesses Karudas and Rama had been examined by him but they had nothing to state and that therefore a new case was now being sought to be made out through their evidence. Should it be found that the witnesses Karudas and Rama had been questioned before the police that they had no knowledge of them and neverthless that they are subsequently deposing to those facts before the Sessions Court then that would be a circumstance which would affect the credibility of their evidence and may lead to a disbelief of it; but I am unable to see how upon that ground it can be held that the prosecution are not entitled to examine them at all. All the circumstances relative to the so called prejudice which mr. Ahmed has placed before me seem to be mere circumstances tending to show that these witnesses should not be believed, which is a matter which I have no doubt the learned First Additional Sessions Judge will consider after their evidence is recorded.
(17) I allow the application for revision, set aside the orders dated 22-7-1959 and 25-7-1959 of the First Additional Sessions Judge in Sessions Trial No. 34 of 1959 and order that the two witnesses Karudas and Rama shall be examined as prosecution witnesses on their production by the prosecution and subject to what I have observed in this order.
(18) Revision Allowed.